New South Wales District Court CITATION: R v SBRUGNERA [2009] NSWDC 320 HEARING DATE(S): 5 November 2009 EX TEMPORE JUDGMENT DATE : 5 November 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: For the offence of robbery, the offender is sentenced to imprisonment. I set a fixed term of eighteen months. For the offence of aggravated robbery, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year and an overall term of three years. CATCHWORDS: Criminal Law - Sentence - Robbery - Aggravated robbery - Form 1 - Significant criminal history PARTIES: The Crown Jesse Sbrugnera FILE NUMBER(S): DC 2009/7732 SOLICITORS: NSW DPP Mandy Hull & Associates SENTENCE 1 HIS HONOUR: On 25 February 2009 a young woman was working alone in a Subway store down at Lee Wharf. She got to work just after 6.00 am and opened the store at 7.00 am. At about 7.25 the offender came in. He was determined to rob the young woman. 2 He leapt over the counter and raised his clenched fist at her. Not surprisingly, she became very frightened. He said, "Shut your fucking mouth, don't tell anyone. Where's the money?" With that, he opened the till and took $300. He did say, in an effort to reassure the young lady, "I'm not going to hurt you, I wouldn't do that," but given his earlier aggressive behaviour and given the fact that he appeared to be on drugs, it is hardly likely that the young lady was reassured by those words. 3 As he was leaving he looked at her handbag. She asked him not to take it and he said he would not. He then left the store and the victim called her employer who called the police. She then began to cry. She said she was very frightened by the robber, a matter which is easily understandable. As I mentioned, she was working there alone and she was very vulnerable. 4 The seriousness of offences such as these is not only to be determined by the loss of property but also the effects on victims of robberies. There is no doubt that the victim of this robbery will be left with consequences for some time. It was a very frightening experience for her, a matter that has to be reflected in the sentence imposed upon the offender. 5 Later on that very same day the offender committed an even more serious offence. He went to the Aldi store at Hamilton where there was a twenty-two year old young man working at the register. As he was serving a customer the offender reached over his shoulder and grabbed a $100 note from the cash register. When he went to remove other notes the victim of this offence grabbed hold of his wrist. In response, the offender punched him three times to the side of his face before fleeing with $183.40 in currency. 6 Why did the offender commit these robberies, one of which is an aggravated version of the offence? He cannot explain it, but perhaps the best explanation comes from the circumstances in which the offender was arrested. 7 He committed the Aldi offence at about 1 o'clock. Only an hour and a half later police saw him at a pub in Hamilton. He was sitting at a poker machine. The $100 note that he had taken from the Aldi store was inside the poker machine. The offender was sitting there gambling the money away. 8 It is something of a pathetic reason that the offender would commit such a serious offence as the one I have just described, simply so he could go from the Aldi store to a pub and gamble away what he had just taken by force and violence. 9 The offender has a significant criminal history and, indeed, has spent much of his life since the age of thirteen in custody. He was, in fact, on parole at the time of these offences for an offence of violence committed upon a Juvenile Justice worker. His parole was revoked not because of the commission of these offences but because he failed to report as directed, failed to provide details of his residence and failed to undergo drug testing as required. In those circumstances, it is appropriate that I commence the sentences I will shortly impose from today rather than the date on which the offender went back into custody, 25 February 2009. 10 I have, however, taken into account in a substantial way the fact that he was on parole for only a very short time before being returned to custody and that this sentence will be accumulative upon that period since he was returned to custody. 11 The offender experienced an unstable living environment as he was growing up. He was regularly moved between his parents' and grandparents' homes. He describes his grandparents, who brought him up mostly, as not giving him any appropriate boundaries. He says that he became involved with the wrong crowd, (a negative peer group in the words of a psychologist who interviewed Mr Sbrugnera and his background for the benefit of the court) and this led to anti-social behaviours, such as excessive alcohol use and criminality. 12 The offender finished school in Year 7 and has not had any formal education since then. Nor has he ever been gainfully employed, with the result that he has had a lot of time on his hands which he seems to have filled in by anti-social and criminal behaviour. In those circumstances, it is simply impossible to find that the offender has good prospects of rehabilitation. He, since a very young age, has really only known one life and that is a life of anti-social and criminal activities. 13 I should mention that when I sentence the offender for the offence of aggravated robbery I am asked to take into account two matters on a Form 1. One is an offence of larceny where the offender simply walked in and removed the till from resale premises and another is an offence of goods in custody when a large number of items of jewellery were found in the offender's possession. 14 The offender pleaded guilty to the robbery matters at an early opportunity and so it is appropriate that I discount the sentences I would otherwise have imposed by 25 per cent to reflect that circumstance. 15 I do recognise the offender is still a young man and that his rehabilitation is something that I should certainly not cast aside. That is one of the many reasons that I have found special circumstances in this case. It has also, of course, affected the overall sentence that I will impose. 16 Also relevant to finding special circumstances is the circumstance, as Miss Hull pointed out, that these sentences will be cumulative on other sentences. On the other hand, there is one significant constraint to the extent to which I can vary the ratio of non-parole period to head sentence in the offender's favour and that concerns the circumstance that on his release on parole the offender took advantage of his freedom simply by acting in a less than appropriate way, culminating in his arrest for these offences. 17 The offender seems to have been under the influence of drugs, at least at the time of the first offence. That may explain matters perhaps but it is certainly not a mitigating feature. It is certainly not going to lead to a sentence any less than would have been the case if the offender had not been under the influence of drugs when he committed these offences. 18 The conduct for which the offender is to be sentenced is serious. As I mentioned, the victims of robberies almost invariably bear the consequences of those offences for a considerable period of time. I have to say also that the first offence in particular was a cowardly offence committed on a young woman alone in the retail store by herself. And the second offence is, of course, the aggravated form of the offence because of the violence that the offender used against a man who was presumably seated at the register and scarcely in a position to defend himself. 19 The sentences I impose are as follows: 20 For the offence of robbery, the offender is sentenced to imprisonment. I set a fixed term of eighteen months to commence on 5 November 2009, that is today's date. 21 For the offence of aggravated robbery, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 5 November 2010 and an overall term of three years. The offender will thus be eligible to be released to parole on 4 November 2011 and the effective sentence I have just imposed is one of four years with a non-parole period of two years. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.